Opinion
No. 12–P–145.
2013-05-7
John DOE, Sex Offender Registry Board No. 23703 v. SEX OFFENDER REGISTRY BOARD.
By the Court (KAFKER, VUONO & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
John Doe # 23703 appeals from a Superior Court judgment that affirmed the final decision of the Sex Offender Registry Board (board) which, after a de novo hearing, classified Doe as a level 3 (high risk) offender. On appeal, Doe argues generally that the hearing examiner's decision is not supported by substantial evidence. Specifically, as to the nature of the offenses, Doe complains that there was no evidence that he “minimized” his responsibility for the sex offenses, or that his 1991 predicate offense was committed against a “stranger.” He further argues that the hearing examiner made “improper” reference to his lack of sex offender counseling; that the finding of “repetitive and compulsive” behavior required expert testimony; and that the hearing examiner held his lack of time in the community post-sex-offense against him.
We affirm. Doe was convicted, upon his plea of guilty, of indecent assault and battery in 1988; he admitted to sufficient facts and was convicted of another indecent assault and battery in 1991. The incident underlying the 1988 conviction took place while charges were pending against Doe on since-dismissed sex charges. The incident underlying the 1991 conviction took place while Doe was under supervision for a drug offense. Doe had also been charged with additional sex offenses between 1988 and 2001, but none resulted in convictions, and the hearing examiner declined to consider them, out of an apparent “abundance of caution.”
The hearing examiner stated: “[Doe] has spent very little time in the community during the last 20 years because of his unabated criminal behavior and criminal convictions for multiple non-sexually violent offenses (at least two of them against women), multiple abuse prevention order violations subsequent to his sex offense convictions, and probation violations.” We discern no error in the examiner's observation that at the time of hearing, Doe was incarcerated, had in fact spent very little time in the community, and that, therefore, this factor places him in a category of higher risk.
Doe appealed the board's initial decision to the Superior Court. Following a hearing in the Superior Court, the judge remanded the matter to the board for clarification, apparently to learn why the hearing examiner declined to consider three of the sex-related charges that had been subsequently dismissed, notwithstanding that the examiner found that the complaints in those matters were sufficiently detailed and otherwise supported by a preponderance of the evidence. On remand, the hearing examiner suggested that absent more information regarding the circumstances, she could not find by a preponderance of the evidence that the charged offenses had occurred as alleged. The hearing examiner then reiterated that the record supported her decision even without consideration of the various charges that had not resulted in convictions.
Doe also has a substantial history of nonsexual offenses, including assault and battery by means of a dangerous weapon, threatening to commit murder, robbery, larceny, possession with intent to distribute, and violations of orders entered under G.L. c. 209A, the result being that, from approximately 1988 to his hearing in 2009, Doe had spent a majority of the time under sentence. Doe has participated in various counseling programs, including anger management, and, he claims, some sex offender counseling. Doe indisputably began sex offender counseling in 2008 but had not yet completed phase I by the time of his board hearing. Doe suffers from drug and alcohol dependence, but at the hearing claimed to be sober.
Doe asserts that he has a large and supportive family.
The hearing examiner found that, “[a]s [Doe] has participated in numerous programs over this 18–year period, yet was still a ‘chronic relapser,’ I gave and still give his future long-term goals of sobriety little weight.”
The hearing examiner noted that, “while [Doe] testified that he would have the support of many family members once he has been released, they have supported him throughout his life and during his lengthy criminal history, and this support has not served as a deterrent for him.”
When the matter returned to the judge (see note 2, supra ), he affirmed the decision to classify Doe as a level 3 offender, finding that “the two decisions ... are supported by substantial evidence, are not arbitrary or capricious and do not constitute an abuse of discretion.” See, e.g., Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 614–615 (2010). We agree.
Regarding the examiner's consideration of the nature of Doe's sex offenses, Doe claimed at the hearing that his 1988 predicate offense was consensual, notwithstanding the conviction. See 803 Code Mass. Regs. § 1.40(9)(c)(13) (2002). Doe's testimony that he had remorse for the victim would appear to be contrary to a consensual encounter, however, and betrays either a denial by Doe or an unwillingness to take responsibility. With respect to the examiner's consideration of Doe's relationship with the victims, the record evidence tends to show that the victim of the 1991 predicate offense claimed to be unacquainted with Doe. See 803 Code Mass. Regs. § 1.40(7) (2002).
The hearing examiner specifically declined to apply the factor pertaining to sex offender treatment, observing that until recently, such treatment had been unavailable to Doe. 803 Code Mass. Regs. § 1 .40(17) (2002).
We discern no error in the hearing examiner's application of the aggravating factors indicating that Doe posed a high risk for reoffense.
Doe next complains, essentially, that because the board did not introduce expert testimony on the nature of his “repetitive and compulsive” behavior, the examiner's decision lacks substantial evidence. See G.L. c. 6, § 178K(1)( a ) (ii); 803 Code Mass. Regs. § 1.40(2) (2002). Specifically, he contends that the examiner did not make a specific finding as to exactly how Doe's conduct could be properly characterized as “compulsive” and that, to the extent the statute and regulation can be construed to allow such a finding based on two attacks against two different women three years apart, the regulation improperly implements the statute. Doe did not raise the argument below and we deem it waived. See Secretary of Admn. & Fin. v. Commonwealth Employment Relations Bd., 74 Mass.App.Ct. 91, 95 (2009) (“Review pursuant to G.L. c. 30A is not the time to insert new issues into the case, especially those requiring statutory interpretation best left to the [board's] expertise in the first instance”).
In any event, the examiner specifically found that Doe was convicted of two separate sexual offenses against two different women on two different occasions. The first assault took place while charges were pending against Doe on an unrelated alleged sex offense; the second took place while Doe was on probation. The record evidence is sufficient to support the hearing examiner's conclusion of “repetitive and compulsive” behavior within the meaning of the regulation.
See 803 Code Mass. Regs. § 1.40(2)(d) (2002). Expert testimony is not required. Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 784–786 (2006).
The hearing examiner found as follows: “[Doe] committed his sex offenses and other crimes while under the influence of drugs and/or alcohol and said he had drug and alcohol issues/addiction for 18 years.... Although [Doe] has had many positive periods of incarceration, he continually committed new crimes once he was released to the community. At the time of the 2009 hearing, [Doe] was incarcerated and had been participating in sex offender treatment, but he was in the early stages of treatment and had yet to complete Phase I of the program. At the time of this remand decision, [Doe] may have already been released from his ... concurrent commitments for two counts of unarmed robbery, but he would still be in the high risk to re-offend category for having less than five years in the community offense free.... These facts amply support elevated concern regarding [Doe's] high risk to re-offend and high degree of dangerousness.”
Judgment affirmed.